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How to File a Medical Malpractice Lawsuit

In order to bring an action for medical malpractice against a physician or hospital you must prove that the defendant has breached their obligation to patients. This evidence could be a hospital and medical documents.

Our lawyers are skilled at conducting effective depositions of witnesses. They could be doctors, other medical professionals in private practice, or employees at a clinic or hospital.

Negligence

If a patient is seen by a doctor or hospital professional is entitled to certain standards of medical care. Unfortunately they aren't always met, or even violated. The consequences of this breach can be devastating.

When someone is injured or death because of a doctor's negligence, they could file a lawsuit against the medical professional. To have a valid case, an injured patient must demonstrate four legal elements including breach of duty and damages and causation.

Malpractice is defined as an act or omission by a physician that deviates from the accepted norms of medicine in the medical community and can cause injury to the patient. It is a component of tort law that covers civil violations, not criminal offenses or contractual obligations.

Medical negligence is different from regular negligence in that the person who is injured must prove that the physician was aware or ought to have known that their actions could cause harm in order to be able to claim malpractice, however normal negligence doesn't. A surgeon who accidentally nicks or cuts a vein or nerve during surgery is guilty of negligence, but not negligence. This is because the doctor did not intend to hurt anyone.

In a medical malpractice case the defendant's obligation is to treat the patient in accordance with the standards of care that a qualified health professional with similar experience and expertise could provide in similar situations. The violation of this obligation is a crucial element because it demonstrates that the alleged negligent behavior caused the injury.

Damages

The damages in a malpractice case are dependent on the losses you have suffered due to the negligence of a doctor. This could include financial losses, like future medical costs, and non-economic losses like discomfort and pain.

To recover damages, you have to prove that the doctor violated a duty of care, that the physician's deviation from the standard resulted in injury, and the injury caused quantifiable financial consequences. This is a complicated legal analysis that typically requires expert witness testimony.

Certain of these losses can be spotted in a matter of minutes, for instance when a mistake made by a doctor caused an infection or other medical issues which required additional treatment. Other damage isn't as obvious, for instance if your doctor misdiagnoses you, and you are unable to get the correct treatment.

If your doctor's malpractice results in your death and you are unable to sue, you may be able to sue for wrongful death. In these cases, you are legally entitled to all the compensation you would have gotten in a lawsuit for survival, plus punitive damages.

In the majority of states, there are limitations on the amount you can recover in a legal case. These caps vary state-to-state and are usually applicable to both economic and non-economic damages. Certain states have laws that limit the time you have to wait before filing an action.

Time Limits

As with any lawsuit there are deadlines that must be followed or the case could be barred. A malpractice lawsuit should generally be filed between two and six years after the malpractice occurred. The timeframe for filing a lawsuit is different for each state.

It is important to consult an attorney as soon as possible. The law firm will conduct an investigation to determine if malpractice occurred and if it will hold up in the court. This process can take weeks or even months.

Medical malpractice law firms cases involve different laws than other types of cases, and often the statute of limitations is modified. For example, in Pennsylvania the patient must file a claim within two years from the time they were aware of the malpractice, or that a reasonable person would have recognized that the harm existed. This is called the discovery rule.

In some states the statutes of limitation start to run on the date the malpractice occurred. This is a problem when the malpractice does not immediately trigger symptoms. Imagine, for instance, that a doctor has negligently left a foreign body in the body of the patient following surgery. The patient may not realize the object until three years after the surgery. In this case the statute of limitations could have started in the year following the date of the procedure, not necessarily the time of discovery of an error.

Expert Witnesses

Expert witnesses are often called upon to explain the facts in medical malpractice cases. Expert witnesses for plaintiffs will provide testimony regarding the doctor's duty of treating the patient with respect and the medical standards for the area and the specialization for doctors with similar qualifications and skills and the ways that the defendant deviated from the standards. The expert will discuss how the defendant's departure directly impacted the patient's injuries.

The defendant will hire an expert to challenge the plaintiff's expert and offer their professional opinion as to whether the doctor was in compliance with the standards of care. It is common for experts to differ with each with respect to their opinions, but the factfinder decides who is the most trustworthy on their expertise and experience.

It is preferential for the expert to be working in the medical field as they are more informed about current practice. Judges and jurors tend to consider professionals who are practicing more credible than experts who rely only on the testimony of a court.

It is also recommended to use an expert witness who specializes in the field of fraud. For instance a medical professional who is proficient in treating breast cancer can make an even more convincing case for the reason for the plaintiff's injury. A medical malpractice attorney in Ocala will know what expert witnesses to consult.